BOUNDARIES AND CHALLENGES WITHIN CRIMINAL JUSTICE. Laurie Glanfield NSW Attorney-General s Department

Transcription

1 BOUNDARIES AND CHALLENGES WITHIN CRIMINAL JUSTICE Laurie Glanfield NSW Attorney-General s Department Paper presented at the 3 rd National Outlook Symposium on Crime in Australia, Mapping the Boundaries of Australia s Criminal Justice System convened by the Australian Institute of Criminology and held in Canberra March 1999

2 As a child I remember being taught the importance of boundaries. Boundaries represented the no go area. They represented other people s property - their domain. To a child it didn t make much sense. It was an adult thing. Every time I wanted to explore, to do something different or challenging there was a boundary in the way. It was, however, great preparation for working in the criminal justice system. Boundaries within our criminal justice systems have been used to limit responsibility; to set the line beyond which ownership, and therefore control, is lost or at least not exercised. These boundaries have become so entrenched that many participants in our criminal justice systems have simply never sought to exercise any interest or influence beyond those boundaries. No doubt we will hear during this conference of the boundaries or limits of responsibility of various justice agencies and those non-government agencies working closely with the justice system. Many of the challenges facing us today and many of the shortcomings of our criminal justice systems are the result of the historical and inhibiting effect of these boundaries. Inter-agency territorial behaviour is not unique to the criminal justice system but there are some boundaries which would be difficult to replicate elsewhere. For example, there has been a unique preoccupation within the criminal justice system with independence. Perhaps for some it is a concept synonymous with the absence of accountability. Police have traditionally claimed an independence in the exercise of their prosecutorial discretion. Lawyers, both prosecution and defence, also claim an independence and perhaps most importantly the judiciary claim a judicial independence. Now no-one would doubt that justice demands an impartial and uninfluenced exercise by each member of these groups of their powers and responsibilities. But independence cannot be used as a barrier to resist scrutiny, reform or accountability nor can it be the reason for refusing to work co-operatively with others. I have highlighted the independence issue as more than any other barrier the concept itself is an encouragement to go-it-alone. On the basis of independence one part of the criminal justice system can prevent change even if it is supported by all the other parts of the system. These claims for independence necessarily mean that the criminal justice system comprises a collection of free agents who are by nature competing not co-operating. Add this to the complexity of the system and it explains why each agency must make extraordinary efforts to encourage a system wide approach. Most criminal justice systems are indeed complex comprising the judiciary, police, legal aid, prosecutors, court administrators, corrective services, probation services, juvenile justice and a myriad of support services both government and non-government. In New South Wales the annual expenditure on the criminal justice system exceeds $2 billion. In a system so complex, connection and organisation would be difficult even without the territorial boundaries. The identification of the problems of the lack of co-ordination in the justice system is nothing new. It is particularly evident when we look to the area of crime prevention where a lack of co-ordination has been identified as the greatest contributor to ineffective crime prevention. Grabosky and James recognised that crime prevention is by no means the monopoly of a 2

3 particular agency. 1 The UK Police Research Group believes co-ordination is essential for effective multi-agency crime prevention work, and a lack of adequate co-ordination appears to be one of the most common difficulties encountered. 2 The Group referred to the increasing focus..on the importance of involving agencies other than the police in tackling particular crime problems. 3 Not only has the problem of the lack of co-ordination been recognised but in recent years there have been considerable efforts made to improve co-ordination and co-operation within the criminal justice system and to promote reform. For example, in Australia attempts have been made to improve co-ordination through regular consultative and policy forums. There are, and this is not meant to be an exhaustive list, regular national meetings of relevant Ministerial Councils, Directors of Public Prosecutions, Directors of Legal Aid, Chief Justices, Judges and heads of relevant government agencies (Corrections, Police and Courts). The agenda for the Standing Committee of Attorneys General consistently includes criminal procedure reform and, indeed the 1997 Corns Report 4, which recommended extensive reform to the handling of complex criminal trials was a task given to the Australian Institute of Judicial Administration by the Standing Committee. Each jurisdiction also has put in place its own processes for facilitating co-operation within their own criminal justice systems. I will briefly outline some of the initiatives implemented in New South Wales. Since 1992 key New South Wales justice system stakeholders have been meeting to discuss key issues relating to the operation of the criminal justice system. These meetings have taken place generally twice a year and involve Judges, court administrators, the legal profession, Ministers, and representatives of legal aid, the Director of Public Prosecutions and government agencies. Similarly the Chief Executives of all 6 government justice agencies meet every 2 months to discuss systemic issues including co-ordination of efforts and reform. Successful initiatives include co-ordination of capital works, security and information technology programs (including joint electronic exchange of data), centralised committals with the provision of legal aid at an early stage and streamlining of appeals procedures. My own Department introduced a Quality Management program in This year we will have 60 quality teams (each comprising eight persons) reviewing processes and procedures. Many of these teams are looking at court processes and involve representatives of other justice agencies. I am delighted to say at this early stage of the year we already have three teams which have magistrates as members working alongside departmental and justice agency officers. We have also made special efforts in more recent years to be more inclusive and consultative particularly through the establishment of Advisory Councils (such as the Aboriginal Justice Advisory Council, Victims Advisory Council and a Disability Advisory Council). 1 Grabosky, P & James, M (ed) The Promise of Crime Prevention (1995) AIC at p.x 2 Liddle, M & Gelsthorpe, L (Police Research Group) Inter-Agency Crime Prevention: Organising Local Delivery. Series Paper No. 52 (1994) at p Op cit at p.1. 4 Corns, C An Anatomy of Long Criminal Trials (1997) AIJA. 3

4 So whilst it was true to say that the fencing-off of various parts within our New South Wales criminal justice system substantially inhibited our ability to work co-operatively for reform we believe that has now changed. However, there is still an undue focus on the performance of parts of the system rather than on the whole. Perhaps in defence of their own performance players within the system have tended to focus on performance indicators reflective of their own role (for example, police clear-up rates, court delays or prisoner numbers). Indeed they have been encouraged to do so by the very measures historically collected. There is clearly room for considerable improvement in the nature of the data we collect and in a better understanding of the way performance measures can distort as well as improve performance. In 1993 the Council of Australian Governments established the Review of Commonwealth/State Service Provision in order to develop objective and consistent data on the performance of services that are central to the well being of Australians. 5 It is not surprising that the 1999 Report on Government Services dissects the justice system data along the usual boundaries of police, courts and corrections. What is disappointing is that whilst it devotes 251 pages to detailed analysis of agency specific data it devotes only 4 pages to a general discussion of broad system outcomes and only one paragraph to the interaction between the justice system and the aboriginal community. However, I believe it is time to go beyond agency interests and to think more seriously about how the system as a whole impacts on society. Issues of cost, procedure and delay are important but there are more fundamental issues which deserve greater attention and priority than they are currently receiving. Unless we start to seriously measure the performance of the whole system and not only its constituent parts the big issues will remain unaddressed. We must begin to focus more on the impact of the whole system in order to address some of its more significant shortcomings. It is not that these more fundamental issues have been ignored; in fact, we are regularly reminded in many ways of the problems but I believe we can do more. Of course, this involves looking not only beyond agency boundaries but outside the boundaries of the criminal justice system itself. Perhaps it would be easier for all those involved in the criminal justice system if agreement could be reached within the community on what the role of the criminal justice system as a whole is and how we should measure the outcomes we are seeking. However, the community holds some widely divergent and conflicting views on what our criminal justice system is trying to achieve. For example, many see the system as existing to deter crime by the use of basic caseprocessing mechanisms : the apprehension, prosecution, and sanctioning of offenders. deterrence is generated by the threat that an offender will face a formal penalty for the crime he has committed. 6 Yet as David Kennedy points out unfortunately both scholarship and everyday experience suggest that the deterrent power of this strategy has not been great. 7 5 Steering Committee for the Review of Commonwealth/State Service Provision. Report on Government Services (1999) Vol. 1 at p.iii. 6 Kennedy, D Pulling Levers: Getting Deterrence Right. National Institute of Justice Journal (July 1998) at p.4. 7 Ibid. 4

5 There are clearly many broad outcomes the system should be striving for but let me use just one issue to illustrate my point that maybe we have failed to address some fundamental issues by focussing only on the internal process. One important aspect of the role of the criminal justice system involves the concept of equal treatment by the law of every individual. This is an unquestionable and fundamental human right. The International Covenant on Law and Political Rights provides that all persons shall be equal before the courts and tribunals. 8 Let me test the concept of equality in our civil justice system. It would be generally agreed that all litigants have access to the same process, the same legal costs regime and the same remedies. Let s look beyond the more obvious boundaries and consider how our income tax system impacts on the question of equity of access and cost. Of course, equality disappears when we find that the legal costs of corporations and those carrying on a business are tax deductible but the legal costs for private individuals are not. Private individuals therefore pay considerably more for their access. This inequity is not apparent looking only within the system. Incidentally, the Sackville Access to Justice Committee devoted a chapter of its Report to this issue. The Committee noted the argument that the disparity in taxation treatment produces an unjustifiable anomaly 9 and recommended the issue be reviewed. The issue remains unaddressed. This example, clearly demonstrates that if our focus is too narrow, issues such as equity may be overlooked. If we focus solely on equality of process we may, in a broader sense, produce inequitable outcomes. Perhaps resting too comfortably on ensuring delivery of the same efficient process to each individual we may be ignorant of their special or different needs. Equality of treatment cannot be equated to fairness or justice. Let me turn now to what I would describe as our most significant challenge and that is the impact of our criminal justice system on this country s indigenous population. How well has the justice system served the Aboriginal community? Perhaps, it would be useful to look beyond the justice system boundaries first. Let me highlight a few housing, education and health statistics. In 1997 only 25% of indigenous people lived in homes that were owned or being purchased by their occupants compared with 71% of Australians overall. The 1997 retention rate for Aboriginal students in New South Wales Government Schools in years 7 to 12 was 31% compared with the 63% retention rate for all students. This does, however, represent a 60% improvement over the 1990 retention rate. 10 In 1997 the unemployment rate for Aboriginal people was 45.6% over five times the rate for the general population International Covenant on Civil and Political Rights (1966) Article Access to Justice Advisory Committee Report (1994) Cwlth of Australia at p New South Wales Government Report on Implementation of Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (96-97) at p Op cit at p.135 5

6 The Australian Bureau of Statistics found the rate of perinatal mortality was two to four times as high for indigenous mothers and it was two to three times more likely that their babies would have a low birth weight (less than 2.5kg) compared to the general population. 12 There were four to five times more hospitalisations and fifteen to eighteen times more deaths from infectious diseases than for the general population. 13 Life expectancy of Aboriginal and Torres Strait Islander people living in Western Australia, South Australia and the Northern Territory is about years lower than the life expectancy for non-indigenous Australians. Only 20% of Aboriginal people over the age of 15 in 1997 had post school training compared with 44% of the general population. 14 If we turn back now to the criminal justice system it is not surprising to see a continuing disproportionate representation of the Aboriginal community. In New South Wales in 1997 Aboriginal people represented at least 8.2% of all people appearing on criminal charges before the local court, over four times the appearance rate for the general population. That in itself is distressing but it is compounded by the findings of the New South Wales Judicial Commission in its recent Report on Sentencing Disparity and the Ethnicity of Juvenile Offenders that there were statistically significant differences in the penalties received by the Aboriginal and Torres Strait Islander group and their Anglo-Australian counterparts, with the former receiving harsher penalties. 15 As I said earlier some of the fundamental issues which need to be addressed have been identified for some time. Over ten years ago the 1989 Report of the Royal Commission into Aboriginal Deaths in Custody identified the need to find ways to reduce the disproportionate incarceration of Aboriginal people. There have been concerted efforts across Australia to implement those recommendations but the focus on agency level implementation of the report s recommendations has distracted us from the more fundamental issues. Despite all the best endeavours the over representation of Aboriginal people coming into contact with the justice system remains, indeed it has worsened. 12.7% of the New South Wales prison population in 1997 were Aboriginal or Torres Strait Islanders. 16 In 1982 only 5.8% of the prison population were Aboriginal or Torres Strait Islanders but there has been a steady increase in that level of over-representation over the 15 years to The Health and Welfare of Australia s Aboriginal and Torres Strait Islander Peoples. Australian Bureau of Statistics (1997) at p Op cit at p Op cit at p Judicial Commission of New South Wales - Sentencing Disparity and the Ethnicity of Juvenile Offenders. No. 17 (1998) at p.vii. 16 NSW Department of Corrective Services, NSW Inmate Census (1997) Table 5.2 at p.63. 6

7 Of 351 children in New South Wales juvenile detention centres at 31 December 1997, 125 were Aboriginal or Torres Strait Islanders (35.6%). 17 An important diversionary system was introduced in New South Wales in 1998 specifically to keep less serious juvenile offenders out of detention. The Youth Justice Conferencing scheme is being carefully monitored and the early statistics from the NSW Police Service and the Department of Juvenile Justice on the rate of referral of Aboriginal juveniles is interesting. As at 31 January 1999 a total of 901 referrals had been accepted by the Department of Juvenile Justice. Of these, 124 were in relation to Aboriginal or Torres Strait Islander young persons, representing 13.8% of the total referrals. This figure may appear high but in fact it is quite low compared to the 35.6% proportion of detainees who are Aboriginal or Torres Strait Islanders. The problem is even greater when we see that 72 of the 124 referrals were court referrals and only 52 were police Service referrals. Now these may be simply early teething problems which will be corrected. However, as Youth Justice Conferencing is a diversionary scheme this lack of equal access could clearly lead to an increasingly disproportionate representation of Aboriginal youth before the courts. Multiply this by the impact of a greater likelihood for Aboriginal persons to receive a custodial sentence (as the New South Wales Judicial Commission has found, at least in relation to juveniles) 18 and the potential for greater injustice is clear. Now I recognise that all those involved in the Conferencing Scheme are endeavouring to address the problem. The scheme requires a guilty plea or a finding guilt (conviction) and it appears Aboriginal young persons may be less inclined to plead or are being advised to plead not guilty. The reasons for this are likely to be quite complex and certainly the matter is receiving attention in the New South Wales Police Service and the Department of Juvenile Justice. The Aboriginal Justice Advisory Council is examining possible barriers to Aboriginal participation. Nevertheless, my point is that by any measures of equity our criminal justice systems are failing the Aboriginal community. Disadvantage suffered in other areas such as health, housing and education are compounded by the justice system. Now this cannot be simply left at the feet of government. This is a fundamental issue which requires an even greater effort by all justice agencies working together and focussing on the broad aim of equality of outcome not process. This will require a concerted and collective approach not a piecemeal agency by agency response. In New South Wales, we are fortunate to have a completely restructured Aboriginal Justice Advisory Council to guide and co-ordinate our efforts. The former Committee has recently been restructured by the Government to be more representative of the aboriginal community throughout the State. It has a central Council and six regional councils together with a policy and research secretariat of four staff located within the Attorney General s Department. It is 17 NSW Department of Juvenile Justice: Monthly Operations Report (December 1997) NSW Government Report on Implementation of Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (96-97) at p Judicial Commission of New South Wales Op cit. 7

8 funded jointly by the key justice agencies; Police, Corrective Services, Juvenile Justice, Attorney General s and the Aboriginal and Torres Strait Islander Commission. The Aboriginal Justice Advisory Council is looking again at the Australian Law Reform Commission s 1986 Report on the Recognition of Aboriginal Customary Laws. 19 The Council is looking at creative diversionary schemes, the Canadian Circle Sentencing system, the youth justice conferencing scheme as well as many other significant justice issues. The Council has also recognised the need for an across-agency approach, involving non-justice agencies to address the underlying causes of contact with the criminal justice system. In New South Wales we are to taking up the real challenge here by working together. We are no longer allowing the old agency boundaries to stand in the way of our efforts to rectify the shortcomings of the justice system in its interaction with the Aboriginal community. We do recognise the need to work closely with our colleagues in the housing, education and health sectors. Rather than only focusing on the processing capacity of the criminal justice system we must also turn our efforts to inter-agency co-operative crime prevention initiatives not to simply reduce crime but importantly to reduce the level of contact of the Aboriginal community with the criminal justice system. We need to review the appropriateness of our laws and systems to the Aboriginal community and to explore more appropriate pre-court diversionary schemes. These are the challenges facing us today. There is a second area I would now like to highlight where I believe the fragmented nature of our criminal justice system has traditionally impeded our efforts as a community to achieve substantial progress. It is unfortunately the case that the community often sees great comfort in using the criminal law to address significant social problems. Inevitably the criminal justice system cannot deliver the desired outcome although rarely is an effort made to measure the effectiveness of the use of the criminal law. At the beginning of the century America s effort at alcohol prohibition represented an attempt to address alcohol problems by criminalising certain activities. It could only be described as a failure and indeed had the reverse effect of increasing serious crime. In Australia homelessness or vagrancy was a social problem the criminal law was incapable of addressing. Equally, our criminal justice system has demonstrated its inappropriateness, indeed inability, to address the drug problem. Drug dependency is primarily a health problem yet traditionally we approach the issue from a law enforcement perspective. It is a matter which has currently and rightly engaged public debate. If, as I said earlier, we are clear on the role of the criminal justice system in relation to a particular issue then it is easier to set the outcomes we are seeking and then to measure our success in achieving those outcomes. Not surprisingly, in such a difficult area there has been a traditional preoccupation with measuring activity not outcome. Activity looks good but if it is misguided or misdirected then it is likely to be ineffective. If the use of the criminal law is 19 The Law Reform Commission - The Recognition of Aboriginal Customary Laws (1986) Report No

9 designed to reduce illicit drug use and trafficking then it should not be hard to find a few measures, which will tell us whether it is a successful approach. Now considerable law enforcement activity is directed to the seizure of drugs with a view to reducing the available supply. We often read of dramatic seizures of vast quantities of drugs. If this approach is successful one would expect availability to become tight and the price of drugs to increase. The New South Wales Bureau of Court Statistics and Research tested this theory in In their Report Drug Law Enforcement Policy and its impact on the Heroin Market, Don Weatherburn and Bronwyn Lind concluded that there is no detectable relationship between the price, purity and perceived availability of heroin at street level and (the) average amount of heroin seized, either a) across Australia or, b) within New South Wales.. 20 That is, neither the availability nor the price of heroin on the street was affected by current law enforcement seizure activity. Weatherburn and Lind concluded their Report with the following observation: For those genuinely concerned to reduce the social costs associated with drug use, it may be time to reconsider the question of whether we have struck the right balance between treatment and law enforcement in minimising the harm associated with illegal drug use. 21 Perhaps then we could look to another measure of the effectiveness of the use of the criminal law by considering levels of illicit drug use in the community. If our current approach is appropriate and effective the incidence of drug use should be diminishing. It is not. In an evaluation of the National Drug Strategy over the years 1993 to 1997 Paul Williams in his statistical supplement concluded: Overall trend lines suggest more rather than fewer persons aged are using at least one hard drug - the data presented on individual substances indicate that this is due to increased use across the board, rather than confined to an increase in popularity of a single substance. For persons aged years approximately 1 in 12 (8.1%) had used one or more hard drugs in 1995 (an increase from 1 in 16 in 1988). For persons aged years, slightly more than 1 in 10 (10.9%) had used one or more hard drugs in 1995 (an increase from 1 in 12 in 1988). 22 In relation to illicit as distinct from hard drugs (the principal difference being use of marijuana), between 1988 and 1995, the proportion of the Australian population which had used at least one illicit drug in the previous 12 months increased from approximately 1 in 8 (11.5%) persons to slightly less than 1 in 6 (17.2%) persons NSW Bureau of Crime Statistics and Research Drug Law Enforcement Policy and its impact on the Heroin Market. (1995) at p Op cit at p Williams, Paul Progress of the National Drug Strategy: Key National Indicators. Evaluation of the National Drug Strategy ( ) Statistical Supplement. 23 Ibid. 9

10 The link between illicit drug use and crime is clear. Recent research into the Stolen Goods Market in New South Wales by Stevenson and Forsythe 24 found that 90% of the imprisoned burglars interviewed used illicit drugs; 51.3% reported using heroin and the median weekly amount spent was $1,500. The greater the use the greater the number of burglaries committed. The answer seems clear; you can reduce crime by reducing drug dependency. It is difficult to see how incarceration of these drug dependent offenders without more can provide any long term beneficial effect. As Weatherburn and Lind indicated it is time to review our approach. The fact is that drug dependency is a health issue. Unfortunately efforts to find alternatives to the traditional law enforcement approach have been too readily dismissed as going soft. But by any measure (well at least two) our criminal justice system is simply not the appropriate mechanism for dealing with health issues. Now it is easy, in fact quite comfortable, for criminal justice agencies to look simply at the commission of a drug related offence and to apply our law enforcement model of arrest, trial and imprisonment. We can even measure how efficiently and effectively we deal with drug related offences. This, however, ignores the fundamental issue. One recent initiative worthy of note is the New South Wales initiative to establish a Drug Court. It reflects a genuine shift towards a collaborative approach between the courts and health, probation, housing and education agencies (a whole of government approach) designed to achieve a long-term reduction in drug related crime. The United States National Centre of Addiction and Substance Abuse has found that drug courts provide closer, more comprehensive supervision and much more frequent drug testing and monitoring during the program than other forms of community supervision. 25 The Drug Court is modelled on the US Drug Courts and although it is initiated by an offender s arrest for a drug related crime, the program concentrates on addressing drug addiction. The Drug Court involves judicial supervision of a structured community based treatment program with a series of graded sanctions and rewards. In one sense the criminal justice system is being used as an incentive for offenders to undertake drug treatment and rehabilitation programs. The Drug Court will be the subject of a thorough evaluation. It s not the only answer but it s a great start. It is a positive note on which to end. I believe it is possible for agencies within the criminal justice system to play a key role in addressing significant social issues (including the critical issues affecting the Aboriginal community and the drug dependent). The challenges are here with us now - let s dismantle the boundary walls and work together. 24 Stevenson, RJ and Forsythe, LMV, the Stolen Goods Market in NSW: an interview study with imprisoned burglars, NSW Bureau of Crime Statistics and Research (1998). 25 Belenko, Steven, Research on Drug Courts: a Critical Review, the National Centre of Addiction and Substance Abuse (CASA), Columbia University (June 1998). 10